Full case report
Rugby Football Union v Viagogo Ltd
Reference  UKSC 55
Court Supreme Court
Judge Baroness Hale of Richmond, Lord Kerr of Tonaghmore, Lord Clarke of Stone-cum-Ebony, Lord Reed JJSC, Lord Phillips of Worth Matravers
Date of Judgment 21 Nov 2012
Disclosure – Norwich Pharmacal Order – Charter of Fundamental Rights of the EU – Article 8
The Claimant Respondent (C) was the RFU, the Defendant Appellant (D) was Consolidated Information Services, formerly Viagogo Ltd, a third party ticketing website. C had a deliberate policy of allocating tickets at low prices to grassroots organisations to develop the game and enhance its popularity.
The claim was brought in respect of tickets for matches in 2010 and 2011 which C alleged D had permitted to be anonymously advertised and sold on its website at prices above face value. C said that both sellers and purchasers had committed actionable wrongs against it, its terms and conditions stipulating that any resale of a ticket or any advertisement of a ticket for sale at above face value would constitute a breach of contract rendering the ticket null and void. D, it said, had become mixed up in the wrongdoing so that the court should make a Norwich Pharmacal order against it, requiring it to identify those advertising and selling the tickets, as well as the details of the tickets themselves.
The Judge at first instance, Tugendhat J, had decided that D was mixed up in wrongs committed against C, in that C had an arguable case in breach of contract and/ or conversion against the buyers and sellers of the tickets, and in trespass against those who entered the stadium. He held that C intended to seek redress from the wrongdoers and there was no other means of obtaining the information about them other than from Viagogo, and that it was right to grant relief in the circumstances.
D appealed, adding in the CA a new ground for resisting the order, to the effect that such an order would constitute an unnecessary and disproportionate interference with the rights of alleged wrongdoers under article 8 of the Charter of Fundamental Rights of the European Union (“Charter article 8”), which guarantees the protection of personal data. The CA dismissed D’s appeal, holding, in relation to the personal data rights of those involved in buying and selling the tickets, that such interference was proportionate in light of RFU’s legitimate objective in obtaining redress.
D’s argument before the SC was confined to the potential breach of article 8 of the Charter, which provides that
“1. Everyone has the right to the protection of personal data concerning him or her.
2. Such data must be processed fairly for specified purposes and on the basis of the consent of the person concerned or some other legitimate basis laid down by law …”
Its challenge was based on the claim that the CA applied the wrong test in assessing the proportionality of making the Norwich Pharmacal order.
Was the granting of a Norwich Pharmacal Order against D an unnecessary and disproportionate interference with the rights of others so as to constitute a breach of Charter article 8?
Dismissing the appeal:
The court could have regard to the overall aim of a claimant in seeking information about third parties in granting a NP order. Here the RFU’s interest in actively discouraging others who seek to flout its ticketing rules could be relevant.
Where a court weighs conflicting interests on the basis of the facts of each case, such facts could encompass broader considerations that motivated the applicant for disclosure. There was no sensible reason to exclude the RFU’s interest in preventing the future sale of tickets for international matches at inflated prices.
The ultimate balancing test set out by Lord Steyn in In re S  1 AC 593 is also applicable to the balancing of different rights under the Charter. It is a correct statement of how to approach proportionality in relation to Norwich Pharmacal orders. An intense focus on the comparative rights of those involved in the appeal did not mean that affected individuals would have been unfairly or oppressively treated, the balancing exercise falling in favour of granting the order sought. The impact of the disclosure of the personal data sought did not offset the interests of the RFU in obtaining the information.
The judgment contains a convenient summary of the authorities on the factors to be weighed by the court when considering whether or not to exercise its discretion to grant a Norwich Pharmacal order. It also usefully breaks down the current state of data protection law under Parliament and Council Directive 95/46/EC, the DPA 1998, and the Charter.
Most notable in terms of the approach to be taken to Norwich Pharmacal applications, and encouraging to those who make them, is the extent to which the proportionality of granting such an order can be influenced by ‘big picture’ considerations as to its ultimate purpose. These are inevitably fact-specific, but an indication of their potential extent can be derived from the fact that C in this appeal aimed to protect its interest in the promotion and development of rugby as a sport.
Kerman & Co LLP for C; Lewis Silkin LLP for D
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